Citation Nr: 1028131
Decision Date: 07/28/10 Archive Date: 08/10/10
DOCKET NO. 08-38 179 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to service connection for residuals of lung
cancer, to include as due to carbon tetrachloride exposure.
2. Entitlement to service connection for chronic obstructive
pulmonary disease (COPD), to include as due to carbon
tetrachloride exposure.
3. Entitlement to service connection for liver hemangioma, to
include as due to carbon tetrachloride exposure.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
Shamil Patel, Associate Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The Veteran served on active duty from November 1951 to July
1954.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a January 2008 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, which denied service connection for the claimed
disabilities.
The Veteran testified before the undersigned Veterans Law Judge
at a Travel Board hearing in June 2010. A copy of the hearing
transcript has been associated with the claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran contends that he has COPD, liver hemangioma, and
residuals of lung cancer as a result of exposure to carbon
tetrachloride in service. Specifically, he worked as a radio
operator during service. In that capacity, he testified that he
used carbon tetrachloride to clean and maintain the
communications equipment he operated. He described his exposure
as occurring 4 to 5 days per week for a period of 17 months. See
June 2010 Travel Board Hearing Transcript.
Private treatment records dated 2001 show diagnoses for COPD and
liver hemangioma, as well as a lung biopsy which revealed
malignant epithelial tumor cells present in the right lung mass.
To date, no development has been undertaken to verify the
Veteran's exposure to carbon tetrachloride in service.
Therefore, the case should be remanded to allow the RO/AMC to
contact the relevant service department and verify such exposure.
The Veteran submitted several internet articles detailing the
effects of exposure to carbon tetrachloride. The U.S. Court of
Appeals for Veterans Claims (Court) has consistently held that
medical statement and/or treatise evidence that was too generic
and inconclusive as to the specific facts in a case was
insufficient to establish causal link. See Sacks v. West, 11
Vet. App. 314, 316-17 (1998); Wallin v. West, 11 Vet. App. 509,
514 (1998); Mattern v. West, 12 Vet. App. 222, 228 (1999).
However, in light of the evidence, the Veteran should be afforded
the appropriate VA examinations to determine whether his
diagnosed disabilities are attributable to carbon tetrachloride
exposure in service. See 38 C.F.R. § 3.159(c)(4)(I) (2009) (VA
will provide a medical examination or obtain a medical opinion
based upon a review of the evidence of record if VA determines it
is necessary to decide the claim).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
1. The RO/AMC should seek verification from
the United States Navy verifying whether
carbon tetrachloride was routinely used to
clean and maintain communications equipment
during the period from 1951 to 1954 and
whether the Veteran, in his capacity as a
radio operator, was exposed to this chemical.
2. The Veteran should be scheduled for a VA
examination by a pulmonologist or other
appropriate specialist to determine whether
it is at least as likely as not that the
Veteran's lung cancer residuals and COPD are
related to exposure to carbon tetrachloride
in service. The claims file should be
reviewed by the examiner prior to
examination. All indicated tests and studies
should be accomplished, and the examiner
should comply with the instructions above, to
include an opinion as to whether it is at
least as likely as not that the Veteran's
lung cancer residuals and/or COPD were
incurred in or are otherwise related to
exposure to carbon tetrachloride in service.
Note: The term "at least as likely as not"
does not mean merely within the realm of
medical possibility, but rather that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is as medically sound to find in
favor of causation as it is to find against
it.
The examiner should review the entire record
and provide a complete rationale for all
opinions offered. If an opinion cannot be
expressed without resort to speculation,
discuss why such is the case. In this
regard, indicate whether the inability to
provide a definitive opinion is due to a need
for further information or because the limits
of medical knowledge have been exhausted
regarding the etiology of the disabilities at
issue or because of some other reason.
3. The Veteran should be scheduled for a VA
examination by a hepatologist,
gastroenterologist, or other appropriate
specialist to determine whether it is at
least as likely as not that the Veteran's
liver hemangioma is related to exposure to
carbon tetrachloride in service. The claims
file should be reviewed by the examiner prior
to examination. All indicated tests and
studies should be accomplished, and the
examiner should comply with the instructions
above, to include an opinion as to whether it
is at least as likely as not that the
Veteran's liver hemangioma is related to
exposure to carbon tetrachloride in service.
Note: The term "at least as likely as not"
does not mean merely within the realm of
medical possibility, but rather that the
weight of medical evidence both for and
against a conclusion is so evenly divided
that it is as medically sound to find in
favor of causation as it is to find against
it.
The examiner should review the entire record
and provide a complete rationale for all
opinions offered. If an opinion cannot be
expressed without resort to speculation,
discuss why such is the case. In this
regard, indicate whether the inability to
provide a definitive opinion is due to a need
for further information or because the limits
of medical knowledge have been exhausted
regarding the etiology of the disability at
issue or because of some other reason.
4. Following completion of the foregoing,
the AMC/RO must review the claims folder and
ensure that all of the foregoing development
has been conducted and completed in full. In
particular, the AMC/RO should determine
whether the examiner has responded to all
questions posed. If not, the report must be
returned for corrective action. 38 C.F.R. §
4.2 (2009).
5. After the requested development has been
completed, the AMC/RO should readjudicate the
merits of the claims based on all the
evidence of record, including any additional
information obtained as a result of this
remand. If the benefits sought on appeal
remain denied, the appellant and his
representative should be furnished a
supplemental statement of the case and given
the opportunity to respond thereto.
Thereafter, subject to current appellate
procedures, the case should be returned to
the Board for further appellate
consideration, if in order. The Board
intimates no opinion as to the ultimate
outcome of this case. The appellant need
take no action unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).